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$204,856 in Attorney’s Fees and Costs Awarded in Nebraska Kosher Diet and Muslim Prayer Case

$204,856 in Attorney’s Fees and Costs Awarded in Nebraska Kosher Diet and Muslim Prayer Case

by Brandon Sample

On May 5, 2008, Joseph F. Batallion, Chief Judge of the U.S. District Court for the District of Nebraska, awarded $204,856.28 in attorney’s fees and costs to a prisoner in a civil rights action alleging deprivations of religious liberty.

Mohamad El-Tabech, a prisoner in the Special Management Unit (SMU) at the Tecumseh State Correctional Institution, sued the Nebraska Dept. of Correctional Services (NDCS) under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc et seq. El-Tabech alleged that his right to free exercise of religion had been violated by the NDCS’s refusal to provide him with a kosher diet, reasonably accommodate his daily prayer schedule, and allow him daily showers.
El-Tabech’s claims were tried by the court, which granted partial relief.

The court found that prison staff could post a prayer schedule, and ordered that such a schedule be posted with the understanding that guards could “adjust activities or reduce disturbances as appropriate.” However, the court stopped short of ordering NDCS officials to alter institutional schedules.

Access to daily showers was denied. The court held that movement restrictions within the SMU were incompatible with an increased shower schedule. Moreover, El-Tabech could wash himself at his cell’s sink at any time.

Regarding a kosher diet, the court ordered the NDCS to look at the food already available in the prison’s kitchen to select a subset of those items that might be kosher, including boiled eggs, unopened canned and jarred food, uncut and unpeeled fruits and vegetables, cereal, crackers and liquid nutritional supplements. The court also suggested that the canteen list be modified to indicate which vendor items were marked kosher. Not discussed by the court was how a “kosher” kitchen could be maintained without official Jewish ritual supervision. Nor were the differences between Muslim dietary laws (Halal) and Jewish dietary laws (kosher) addressed.

Injunctive relief was ordered by the court as to the prayer schedule and kosher meals. El-Tabech then sought $196,605.90 in attorneys’ fees and costs of $8,380.38, for a total of $204,856.28. His counsel submitted detailed billing records, their qualifications, and affidavits from other attorneys in the Lincoln, Nebraska area attesting to the reasonableness of the fees and costs. NDCS opposed the motion, arguing that the hours expended on the litigation were excessive and unreasonable, and the billable hours had not been properly documented.

The “prevailing party” in a civil rights action is ordinarily entitled to reasonable attorney’s fees. The amount of the fees awarded, however, is limited by certain factors. For example, when multiple claims are presented and some are successful and some are not, courts are required to reduce the award to reflect recovery for only those hours spent working on the successful claims.

In addition, the Prison Litigation Reform Act (PLRA) caps the hourly rate for attorney fees at no more than 150% of the Criminal Justice Act rates for court-appointed counsel. El-Tabech’s attorneys sought compensation for about 1,460 hours of work at $138 per hour. After reviewing the time sheets and billing descriptions, and considering the complexity of the case and other factors, the court found the requested fees and costs were neither excessive nor unreasonable. Further, the court rejected NDCS’s claim that the billing records were inaccurate.

Accordingly, the court granted El-Tabech’s motion, awarding him $204,856.28 in attorneys’ fees and costs. Despite injunctive relief having been ordered in this case, NDCS officials failed to comply with the court’s order to provide a kosher diet and post a prayer schedule for El-Tabech, resulting in a contempt motion being filed against the defendants on August 26, 2008. See: El-Tabech v. Clarke, U.S.D.C. (D. Neb.), Case No. 4:04-cv-3231; 2008 WL 1995304.

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Related legal case

El-Tabech v. Clarke